SEC Comment Letter for TEREX CORP (TEX) (CIK 0000097216) (TEX) — Jul 27, 2010
TEREX CORP (TEX) (CIK 0000097216)
Date: July 27, 2010 · CIK: 0000097216 · Accession: 0000000000-10-042436
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 001-10702
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
DIVISION OF CORPORATION FINANCE
July 27, 2010 Via Facsimile and U.S. Mail
Mr. Phillip C. Widman Chief Financial Officer Terex Corporation 200 Nyala Farm Road Westport, Connecticut 06880 Re: Terex Corporation Form 10-K for the Year Ended December 31, 2009 Filed February 24, 2010 Form 10-Q for the Quarter Ended March 31, 2010 File No. 001-10702 Dear Mr. Widman: We have reviewed your filing and have the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure. Please respond to this letter within te n business days by providing the requested information or by advising us when you will provide the requested response. If you do not believe our comments apply to your facts and circum stances, please tell us w hy in your response. After reviewing the information you provide in response to these comments, we may have additional comments. Form 10-K for the Year Ended December 31, 2009
Forward-Looking Information, page 3
1. Given that you cannot rely on the safe ha rbor provisions rega rding forward-looking statements provided under the Securities Ac t and the Securities Exchange Act for a period of three years pursuant to your settlement agreement with the SEC, please revise your applicable future filings to eliminate your reference in this s ection to the statutory safe harbors sections adopted as a part of each such Act. This comment would also apply
Mr. Phillip C. Widman Terex Corporation July 27, 2010 Page 2 to your quarterly and other periodic reports and statements made at the beginning of your earnings calls.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations, page 33
-Results of Operations, page 37
2. We note here and throughout the filing th at you present non-GAAP measures including but not limited to the decline in your sale s, gross profit, and selling, general and administrative costs excluding the translation effect of your foreign currency exchange rate changes. We note similar disclosu res within your March 31, 2010 Form 10-Q. Please revise your future filings to label th ese as non-GAAP measures and to include the disclosures required by Item 10(e)(1 )(i)(c)-(d) of Regulation S-K.
-Critical Accounting Policies, page 45
-Inventories, page 46 3. We note from page F-54 that you recorded $62 million of inventory write-downs during fiscal 2009. We further note your disclosure on page 38 and throughout the filing that the demand for your products decreased due to the uncertainty about the global economy that caused your customers to defer purchasing your e quipment. Please explain to us in more detail how you determined the amount of invent ory to write-off, including the significant estimates and assumptions. Item 10. Directors, Executive Officer s and Corporate Governance, page 64
4. We note the disclosure regard ing the qualifications of your directors to serve on your board on pages 4 through 7 of the section “Pr oposal 1: Election of Directors” of your proxy statement which has been incorporated by reference into your Form 10-K. It appears that you included only general disclosure in re sponse to Item 401(e) of Regulation S-K. In future filings, please be more specific in describing the specific experience, qualifications, attrib utes or skills that led the Board to conclude that each director should serve on your board.
Item 11. Executive Compensation, page 64
5. We note your disclosure on page 13 of the definitive proxy statement incorporated by reference into your Form 10-K in response to Item 402(s) of Regulation S-K. Please describe the process you undertook to reach the conclusion that disclosure is not necessary.
Mr. Phillip C. Widman Terex Corporation July 27, 2010 Page 3 Item 13. Certain Relationships and Related Tran sactions, and Director Independence, page 64
6. We note your disclosure on page 54 of the definitive proxy statement incorporated by reference into your Form 10-K that Mrs. Ellis received an equity grant and compensation in 2009 in excess of $120,000. In future filings, please disclose the dollar value of the amounts involved in such transactions. Form 10-Q for the Quarter Ended March 31, 2010
Note D. Discontinued Operations, page 11
7. We note that you sold your mining business to Bucyrus and that you received $1.3 billion of consideration, which was comprised of $1 billion in cash and 5.8 million shares of Bucyrus common stock. Considering your equity interest in Bucyrus, please explain to us how you met the criteria outlined in T opic 205-20-45-1(b) of the FASB Accounting Standards Codification to present the mini ng business as a discontinued operation.
We urge all persons who are responsible for th e accuracy and adequacy of the disclosure in the filing to be certain that the filing include s the information the Securities Exchange Act of 1934 and all applicable Exchange Act rules requir e. Since the company and its management are in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made. In responding to our comments, please provi de a written statement from the company acknowledging that: • the company is responsible for the adequacy and accuracy of the disclo sure in the filing;
• staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and
• the company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federa l securities laws of the United States.
Mr. Phillip C. Widman Terex Corporation July 27, 2010 Page 4 You may contact Tara Harkins, Staff A ccountant, at (202) 551-3639, Lynn Dicker, Reviewing Accountant, at ( 202) 551-3616, or me at (202) 551-3643 if you have questions regarding comments on the financial statements and related matters. Please contact Allicia Lam, Staff Attorney, at (202) 551-3316, or Tim Buchmiller, Reviewing Attorney, at (202) 551-3635 if you have questions on any other comments. In th is regard, do not hesitate to contact Martin James, Senior Assistant Chief Accountant, at (202) 551-3671.
S i n c e r e l y ,
Kevin L. Vaughn A c c o u n t i n g B r a n c h C h i e f
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
July 27, 2010
Via Facsimile and U.S. Mail
Mr. Phillip C. Widman Chief Financial Officer Terex Corporation 200 Nyala Farm Road Westport, Connecticut 06880
Re: Terex Corporation
Form 10-K for the Year Ended December 31, 2009
Filed February 24, 2010 Form 10-Q for the Quarter Ended March 31, 2010 File No. 001-10702
Dear Mr. Widman:
We have reviewed your filing and have the following comments. In some of our
comments, we may ask you to provide us with information so we may better understand your
disclosure.
Please respond to this letter within te n business days by providing the requested
information or by advising us when you will provide the requested response. If you do not believe our comments apply to your facts and circum stances, please tell us w hy in your response.
After reviewing the information you provide in response to these comments, we may
have additional comments. Form 10-K for the Year Ended December 31, 2009
Forward-Looking Information, page 3
1. Given that you cannot rely on the safe ha rbor provisions rega rding forward-looking
statements provided under the Securities Ac t and the Securities Exchange Act for a
period of three years pursuant to your settlement agreement with the SEC, please revise
your applicable future filings to eliminate your reference in this s ection to the statutory
safe harbors sections adopted as a part of each such Act. This comment would also apply
Mr. Phillip C. Widman
Terex Corporation
July 27, 2010 Page 2
to your quarterly and other periodic reports and statements made at the beginning of your earnings calls.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of
Operations, page 33
-Results of Operations, page 37
2. We note here and throughout the filing th at you present non-GAAP measures including
but not limited to the decline in your sale s, gross profit, and selling, general and
administrative costs excluding the translation effect of your foreign currency exchange
rate changes. We note similar disclosu res within your March 31, 2010 Form 10-Q.
Please revise your future filings to label th ese as non-GAAP measures and to include the
disclosures required by Item 10(e)(1 )(i)(c)-(d) of Regulation S-K.
-Critical Accounting Policies, page 45
-Inventories, page 46
3. We note from page F-54 that you recorded $62 million of inventory write-downs during
fiscal 2009. We further note your disclosure on page 38 and throughout the filing that the
demand for your products decreased due to the uncertainty about the global economy that
caused your customers to defer purchasing your e quipment. Please explain to us in more
detail how you determined the amount of invent ory to write-off, including the significant
estimates and assumptions.
Item 10. Directors, Executive Officer s and Corporate Governance, page 64
4. We note the disclosure regard ing the qualifications of your directors to serve on your
board on pages 4 through 7 of the section “Pr oposal 1: Election of Directors” of your
proxy statement which has been incorporated by reference into your Form 10-K. It
appears that you included only general disclosure in re sponse to Item 401(e) of
Regulation S-K. In future filings, please be more specific in describing the specific
experience, qualifications, attrib utes or skills that led the Board to conclude that each
director should serve on your board.
Item 11. Executive Compensation, page 64
5. We note your disclosure on page 13 of the definitive proxy statement incorporated by
reference into your Form 10-K in response to Item 402(s) of Regulation S-K. Please
describe the process you undertook to reach the conclusion that disclosure is not
necessary.
Mr. Phillip C. Widman
Terex Corporation
July 27, 2010 Page 3 Item 13. Certain Relationships and Related Tran sactions, and Director Independence, page 64
6. We note your disclosure on page 54 of the definitive proxy statement incorporated by
reference into your Form 10-K that Mrs. Ellis received an equity grant and compensation
in 2009 in excess of $120,000. In future filings, please disclose the dollar value of the
amounts involved in such transactions.
Form 10-Q for the Quarter Ended March 31, 2010
Note D. Discontinued Operations, page 11
7. We note that you sold your mining business to Bucyrus and that you received $1.3 billion
of consideration, which was comprised of $1 billion in cash and 5.8 million shares of
Bucyrus common stock. Considering your equity interest in Bucyrus, please explain to
us how you met the criteria outlined in T opic 205-20-45-1(b) of the FASB Accounting
Standards Codification to present the mini ng business as a discontinued operation.
We urge all persons who are responsible for th e accuracy and adequacy of the disclosure
in the filing to be certain that the filing include s the information the Securities Exchange Act of
1934 and all applicable Exchange Act rules requir e. Since the company and its management are
in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy
and adequacy of the disclosures they have made.
In responding to our comments, please provi de a written statement from the company
acknowledging that:
• the company is responsible for the adequacy and accuracy of the disclo sure in the filing;
• staff comments or changes to disclosure in response to staff comments do not foreclose
the Commission from taking any action with respect to the filing; and
• the company may not assert staff comments as a defense in any proceeding initiated by
the Commission or any person under the federa l securities laws of the United States.
Mr. Phillip C. Widman
Terex Corporation July 27, 2010 Page 4
You may contact Tara Harkins, Staff A ccountant, at (202) 551-3639, Lynn Dicker,
Reviewing Accountant, at ( 202) 551-3616, or me at (202) 551-3643 if you have questions
regarding comments on the financial statements and related matters. Please contact Allicia Lam,
Staff Attorney, at (202) 551-3316, or Tim Buchmiller, Reviewing Attorney, at (202) 551-3635 if
you have questions on any other comments. In th is regard, do not hesitate to contact Martin
James, Senior Assistant Chief Accountant, at (202) 551-3671.
S i n c e r e l y ,
Kevin L. Vaughn A c c o u n t i n g B r a n c h C h i e f